The New York Times recently focused on the potential vice presidential candidacy for Senator Marco Rubio, the latest in a long string of earned media Apprentice-style articles in outlets discussing the very public, very slow airing of trial balloons of various vice presidential candidacies from Mar-a-Lago. But with recent pieces there and elsewhere focusing on the legal aspects of his candidacy, I wanted to highlight the potential issue.

CNN:

Omaha is a blue dot in a sea of Nebraska red, which is precisely why Donald Trump and his allies are furiously fighting to change the state’s system of awarding electoral votes in presidential elections.

Even after the Nebraska Legislature closed the door on a pressure campaign intended to keep President Joe Biden from winning one of the state’s five electoral votes – as he did in 2020 by carrying the Omaha-anchored 2nd Congressional District – Trump loyalists are pledging to keep the effort alive.

“We are going to keep on pushing and keep on pushing and keep on pushing until Nebraska gets winner-take-all,” said conservative activist Charlie Kirk, who appeared alongside several state Republican officials here Tuesday to rally support for the change. “Nebraska could pick a president.”

Nebraska Gov. Jim Pillen, a Republican, said this week he was open to calling a special legislative session dedicated to making his state’s presidential contest a winner-take-all affair, all but assuring that Trump would collect the full lot of electoral votes. But Pillen said he would do so only “when there is sufficient support in the Legislature to pass it.”…

Of this year’s presidential battlegrounds, if Biden carries the so-called blue wall states of Wisconsin, Michigan and Pennsylvania and Trump wins Georgia, Arizona and Nevada, the outcome of Nebraska’s 2nd District could likely tip the balance and keep the race from ending in a 269-269 tie. (In such a scenario, the House of Representatives would decide the winner.)

The Nebraska Examiner reports.

Lincoln Journal-Star:

Nebraska lawmakers briefly started — and then stopped — debate Wednesday on legislation that would replace the state’s unique system for presidential elections with the winner-take-all model deployed in 48 other states.

Sen. Julie Slama of Dunbar filed an amendment Wednesday to an unrelated bill that, if approved and made law, would eliminate the state’s system for presidential elections that allowed Joe Biden and Barack Obama to each pick up a single electoral vote in the state in 2020 and 2008, respectively.

The move came one day after former President Donald Trump and Nebraska Gov. Jim Pillen called on Republican lawmakers in the state’s formally nonpartisan Legislature to pass legislation returning Nebraska to a winner-take-all system….

[McDonnell’s] opposition combined with the political realities of the 49-member Legislature — made up of 32 other Republicans, 15 registered Democrats and one nonpartisan progressive — suggests the legislation still does not have enough to support to overcome the filibuster it will inevitably face, one that looms with six days left in this year’s legislative session.

Dave Weigel for Semafor:

Donald Trump and Nebraska Gov. Jim Pillen endorsed legislation that would take Omaha’s potentially decisive electoral vote out of play for Democrats, hours after conservative activist Charlie Kirk’s Tuesday X post suggesting it.

In just 200 words, Kirk urged Republicans to repeal the state’s 1991 law that assigned two electors to the winner of the state, and one for each of its three congressional districts. Republicans easily carried Nebraska in every subsequent election, but in 2008 and 2020, the Omaha-based 2nd District voted Democratic.

“Nebraskans should call their legislators and their governor to demand their state stop pointlessly giving strength to their political enemies,” wrote Kirk.

Five hours and 10 minutes later, Pillen put out a statement supporting a bill that would convert the state to a winner-take all system in November. Donald Trump weighed in early Tuesday evening, praising Pillen’s “very smart letter” in a Truth Social post.

The district has drawn special attention from election observers this year because of the unusually high chance of it playing tiebreaker in a close race between Trump and President Biden.

If Biden lost only Arizona, Georgia, and Nevada from his 2020 column, he would win the electoral college 270-268; if Nebraska gave all five electors to Trump, the tied 269-269 election would be decided by the incoming House’s state delegations, where Republicans currently hold an advantage….

Just wow via NYT:

No Labels, the group that for months has pledged to run a centrist presidential ticket in the event of a rematch between President Biden and former President Donald J. Trump, is running out of time to recruit a standard-bearer after a string of rejections.

With a number of prominent prospective candidates saying no thanks in recent months, some No Labels members and leaders have grown frustrated with the failure to advance a ticket, according to two people involved with the group and notes provided to The New York Times from a recent video meeting of No Labels delegates.

Still, the group’s leadership continues to hold out hope for November, even as the possibility of outright defeating both Mr. Biden and Mr. Trump seems increasingly remote. Leaders have promoted a far-fetched scenario in which the group could play the role of power broker in the general election if neither major-party candidate reaches an outright majority.

As the group charts a path forward, deadlines to get on state ballots are approaching….

Later in Tuesday’s video conference, Mr. Davis walked the group through a scenario in which a No Labels ticket could win several states in the general election, depriving Mr. Biden and Mr. Trump of the 270 electoral college votes required to win.

Such an outcome would prompt a contingent election — a constitutional provision by which the president is chosen by the House of Representatives, and the vice president by the Senate. Such a scenario has not occurred since the 1800s.

In Mr. Davis’s telling, representatives of a major party might opt for the No Labels candidate over the other party’s candidate. In the interview, Mr. Davis said he had discussed the matter on the call to address concerns among delegates about the possibility. He also said Mr. Biden was inviting such a scenario by, in Mr. Davis’s view, framing his campaign as an effort purely to stop Mr. Trump.

“It seems to me Biden is more interested in stopping Trump than anything else,” Mr. Davis said. “Funny things happen. That’s all I can say.”

A contingent election would be a “mind-boggling disaster,” said William Ewald, a constitutional legal scholar at Carey Law School at the University of Pennsylvania. “In an election in the present political climate, whoever won, there would be people rioting in the streets, and not figuratively.”

On Tuesday’s video conference, Mr. Davis — once a fixture of the moderate Republican establishment that has been exiled by the forces aligned behind Mr. Trump — described how No Labels might intervene before the matter even made it to Congress.

In his scenario, so-called faithless electors from any number of states might trade their support for “policy concessions” brokered by No Labels.

Michael Tomasky on a potential 269-269 electoral college tie leading to a contingent election where each state’s U.S. House delegation gets one vote to pick the President.

This sentence, perhaps more than any other, in my judgment, drives the decision in Trump v. Anderson (and the unanimous consensus of the Supreme Court):

Because federal officers “‘owe their existence and functions to the united voice of the whole, not of a portion, of the people,’” powers over their election and qualifications must be specifically “delegated to, rather than reserved by, the States.” U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 803–804 (1995) (quoting 1 J. Story, Commentaries on the Constitution of the United States §627, p. 435 (3d ed. 1858)).

In December 2022, I blogged about how state legislatures needed to take a look at how their existing election codes fit with the Electoral Count Reform Act. In particular, “States should be working backwards from that deadline to determine if their canvass, audit, recount, and contest procedures are able to take place in this tight window.” I tracked some changes in May 2023 as they were pending in states.

Today, the Wisconsin Senate, by a 31-1 vote, passed a major overhaul of how its canvassing, certification, and recount procedures happen, SB 852. Below the jump are the provisions to show how much tighter the process will be–no more languishing recounts or challenges as the state experienced in 2016 and 2020 (if the bill is ultimately signed into law). It’s greatly encouraging to see bipartisan consensus to expedite election procedures in response to the ECRA, especially in a “swing state” like Wisconsin.